Our two-faced policy on nuclear weaponsObama says A-bombs are bad and must
go—while the U.S. military readies their
use

A WALL commentary

The Obama administration says that it seeks to abolish atomic
weapons and that they must never be used again. Yet the U.S.
military’s plans still call for possible use of the bombs.

In principle, the administration accepts that international
humanitarian law, also known as the law of armed conflict, applies to
nuclear bombs.

The most basic principle of such law — acknowledged in Army
lawbooks — is that parties to a conflict must always distinguish between
the civilian population and combatant forces. Accordingly the parties
may direct force solely against the latter.

Of course nukes and their effects do not so distinguish, thus logically
any use of them must be unlawful. The U.S. government has yet to put
two and two together, but it has at least tempered its affinity for the
bombs.

U.S. urges abolition of nuclear bombs

In
2009 the United Nations Security Council, presided over by President
Obama, adopted a resolution proposed by him that reaffirmed the goal of
“a world
without nuclear weapons.” It called for reductions in existing weapons
stockpiles;
control of fissile materials and other nonproliferation measures; and no
more
atomic tests.

Then at a five-year review conference of parties to the
Nuclear Non-Proliferation Treaty, held at the UN in 2010, the U.S. was
active in negotiating a
provision in the Final Document that invoked international humanitarian
law for
the first time in the treaty’s then 40-year history. Expressing the
conference’s
“deep concern at the catastrophic humanitarian consequences of any use
of nuclear
weapons,” it affirmed a need for “all states at all times to comply with
applicable
international law including international humanitarian law.”

The
2010 Nuclear Posture Review, expressing Obama’s policy toward the
weapons, renounced the development of any new types and pledged no
nuclear
attack against nations that lacked nuclear weapons and observed the
Nuclear Non-Proliferation Treaty. It reversed the policies of George W.
Bush. He had proposed
the development of atomic bunker-busters, and his 2002 Nuclear Posture
Review
directed the Pentagon to draft contingency plans to nuke at least seven
countries,
including Russia and China.

Last
April, Susan Rice, American ambassador to the UN, said, “The United
States believes that it has a moral responsibility to lead and act now,
in cooperation
with the members of this council and the international community, to
seek the
peace and security of a world without nuclear weapons.” Addressing a
U.S.-chaired meeting of the Security Council dealing with nuclear
non-proliferation and
disarmament, she emphasized too “our collective interest in ensuring
that the
record of more than six decades of nuclear non-use continues forever.”

Those
principles harmonize with the 1996 advisory opinion of the
International
Court of Justice that the use of nuclear weapons “would generally be
contrary to
the rules of international law applicable in armed conflict, and in
particular the
principles and rules of humanitarian law.” The opinion added that
nations were
obligated to negotiate the abolition of the weapons. In the Nuclear
Non-Proliferation Treaty, in effect since 1970, the U.S. and other
parties had agreed to
negotiate nuclear disarmament.

The court found the weapons to be uncontrollable, endangering the whole
human race. Atomic fission or fusion released “not only immense quantities of heat
and energy, but also powerful and prolonged radiation…. The destructive power of
nuclear weapons cannot be contained in either space or time…. They have the
potential to destroy all civilization and the entire ecosystem of the planet.”

That was not a pro-nuclear ruling, though some claim it was. The U.S. in
1995 had argued to the court that use of the bombs could comply with
humanitarian law in exceptional instances. The court declined to address those
instances, thus unwittingly setting up some topsy-turvy interpretations.

U.S. would consider using the bombs

Agreeing with humanitarian law in theory, the U.S. ignores it in practice when
it comes to nuclear weapons. The last Nuclear Posture Review showed no concern
for it, instead admitting that the administration would “consider the use of nuclear
weapons in extreme circumstances to defend the vital interests of the United States
or its allies and partners.” (Isn’t every war an extreme circumstance? As for the
“vital interests” of the U.S., allies, or partners, wouldn’t that cover just about every
casus belli?)

With one big exception, the U.S. military takes the law of armed conflict
seriously, according to Gary Solis of George Washington University Law School,
former head of West Point’s program on that law. At the spring meeting of the
International Law Section of the American Bar Association (ABA) in New York
on April 20, 2012, he said:

There is one law-of-war topic that is not taught, that is not the subject of Department of Defense directives and orders, that is overlooked by military education … and that is nuclear weapons, their lawful, and more significantly, their potentially unlawful use….

As to Field Manual 27-10, The Law of Land Warfare, taught by DOD order to all Armed
Service members, the current edition has not a single mention of nuclear weapons…. The
Army regulation requiring legal review of all weapons and weapons systems specifically
excludes nuclear weapons….The educational programs at West Point and Annapolis
have no course offerings and no individual lessons on the law of nuclear weapon….

There are no orders or directives to be violated or contravened; there is no basis for
assessing legal culpability of commanders.

The Obama administration has been developing new presidential guidance for
nuclear forces’ missions, targeting, and deployment. The Lawyers Committee on
Nuclear Policy, of New York, wrote to the administration to urge that international
humanitarian law be considered in the process. A reply came back from James
Miller, undersecretary of defense, refusing to comment, because “any guidance
regarding U.S. nuclear force planning and deployment is highly classified….”

The ultimate disdain for the law is seen in the policy of deterrence. The cold
war ended over two decades ago, yet the U.S. and Russia still have thousands of
nuclear bombs aimed at each other, continuously ready for immediate launch. Just
why, the government has yet to explain. If the use of the bombs constitutes a crime
against humanity — as religious leaders of various faiths have long declared — the
deterrence policy proclaims to the world our nation’s willingness to commit that
crime. The International Court of Justice said in its 1996 opinion that it was
unlawful to threaten the use of a weapon if its use would not meet the requirement
of humanitarian law.

Moreover, neither Obama nor any other president has ever renounced the
supposed presidential right to dictate the starting of an atomic war. It is not an
option allowed by the Constitution, which reserves to Congress alone the authority
to decide to wage any war. Moreover, the massacring of populations that the
deterrence policy contemplates contravenes U.S. treaties as well as international
humanitarian law. The policy in effect gives a single man the absolute power of
life and death over everyone. In our constitutional republic, should any weapon as
monstrous as an atomic or hydrogen bomb be under the sole control of one person?

Bombs and budgets

The
president’s budget request for nuclear weapons activity for fiscal year 2013
(starting Oct. 1, 2012) is $7.6 billion — 5 percent above the amount in the
current, fiscal 2012 budget and nearly 10 percent above the previous year’s
total. Obama promised Senate Republicans more and more spending to win their
votes in December 2010 for the new Strategic Arms Reduction Treaty with Russia.
Warheads become fewer, but his budget seeks modifications and upgrades to make
them more destructive and reliable. It also allows construction of facilities,
at Kansas City and Oak Ridge, TN, that expand the capacity to produce warheads.
Obama’s $2.5 billion budget request for nuclear nonproliferation slashes funds
for international programs to safeguard enriched uranium and stop smuggling.
How all that gets us closer to “a world without nuclear weapons” is hard to
imagine.

A-forces on high alert still endanger us all

Most of today’s atomic bombs would each prove more than ten times as
destructive as the type that President Truman ordered dropped on Hiroshima and
Nagasaki, killing hundreds of thousands of civilians. Some bombs deployed today
are each hundreds of times as powerful as either of the two bombs used in 1945.

“Nuclear weapons threaten human existence,” and the peril “is not over with
the end of the cold war,” said Charles J. Moxley, Jr., an adjunct professor at
Fordham University School of Law, and author of International Law and Nuclear
Weapons in the Post Cold War World (Austin & Winfield, 2000) and many
pertinent law journal pieces.

At the meeting of the ABA’s International Law Section, he pointed out that
“there is still a high level of alert of both sides, the United States and Russia, and
of other countries as well … so the existential risk of something going astray by
intention or lack of attention is there.”

He placed the total number of nuclear warheads in the world at 22,000, about
95 percent of them possessed by the two countries.

Moxley said the U.S. accepted the law of armed conflict and its application
to nuclear weapons in principle but ignored the law “in our training … in our
[nuclear] weapons possession and development process” and most importantly in
“the policy of deterrence.” He asked rhetorically, “Is it not evident that our policy
of deterrence is unlawful if the actual use would be unlawful?”

In cold-war days the policy became known also as mutually assured
destruction, or by its apt acronym of MAD. It irrationally assumed that the Soviets
wanted to attack the United States, or vice versa, but that each side would
rationally refrain from attacking, knowing that to do so meant its own doom. No
one figured out how to tell for sure if an attack was taking place and, if it was, who
was responsible. America’s early-warning system interpreted a flock of geese and
a meteor shower as incoming Russian missiles, as Dr. Helen Caldicott wrote.
Within eighteen months, she counted 3,703 false alarms, 152 of them appearing to
represent a potential attack. One mistake nearly brought the world to destruction:

In November 1979, someone plugged a war-games tape into the fail-safe computer,
and the machine made a mistake and decided that Russia had really launched a
nuclear attack. The whole Western world was put on nuclear alert for six minutes;
three U.S. squadrons of planes were armed with nuclear weapons, scrambled, ready
to take off; and at the seventh minute the President [Carter] was to be officially
notified, but they could not find him. At that time the mistake was realized, we were
fourteen minutes from the moment when the button could have been pressed — and
from annihilation.

A nearly catastrophic mistake on the Russian side was described by Jonathan
Granoff, president of the Global Security Institute, at the recent ABA section
meeting: “In 1995, there was a weather satellite shot off the coast of Norway….
Boris Yeltsin was told that a missile was heading for Russia that could be a Trident
launch. He had less than ten minutes to decide if the information was accurate. He
believed that Bill Clinton did not want to end the world, but it looked like it could
be the first volley…. So we came very close.”

Apart
from the U.S. and Russia, Granoff noted that India and Pakistan had
enough nuclear weapons to make the world’s climate uninhabitable by
civilization. “Today we are subject to a potential computer hacker,
creating the
appearance of an attack in that region that could cause a nuclear
exchange…. India
and Pakistan have only 300 seconds in which to evaluate a perceived
attack.”

The Nuclear Non-Proliferation Treaty recognizes five countries as nuclear
weapons states. They are the five permanent members of the United Nations
Security Council. Following are estimates of their number of warheads as of May
2012, according to the Arms Control Association The Russian and U.S. totals do
not include thousands of retired warheads that are due for dismantlement.

Russia — about 5,500 total warheads (ca. 2,000 in storage).United States — 5,113 total warheads (ca. 2,700 in storage).France — fewer than 300 operational warheads.China — about 240 total warheads.United Kingdom — up to 225 total warheads.

India, Pakistan, Israel, and North Korea never joined the treaty. Israel does not
admit or deny having nuclear weapons. These estimates of those countries’
arsenals are based on the amount of fissile, or fissionable, material (highly enriched
uranium or plutonium) that they are believed to have produced

No other nations are known to possess nuclear weapons. Belarus,
Kazakhstan, and Ukraine inherited them upon the Soviet Union’s collapse in 1991
but returned them to Russia and joined the treaty. South Africa developed a few
such bombs but dismantled them and also joined the treaty.

Law of war said to forbid use of nukes

Manuals of the U.S. armed services recognize the rules of armed conflict,
including these: Distinction — Parties to a conflict must distinguish between noncombatants
and military targets, directing their operations only against the latter. Proportionality — Effects
on noncombatants must not be disproportionate to the military advantage anticipated. Necessity
— A party shall use no more force than necessary to achieve its military objective. Unnecessary
suffering shall not be inflicted.

Moxley disputed that any of those standards could be met by “weapons whose effects
are unlimited and unlimitable.” Granoff said, “You cannot bring nuclear weapons
into compliance with the standards of IHL” (international humanitarian law). And
Libran Cabactulan, ambassador to the United Nations, told the same meeting, “The
position of my country, the Philippines, is that nuclear weapons are illegal under
international law, particularly international humanitarian law.”

He explained: “… Nuclear weapons are inherently indiscriminate, far beyond
proportionality, cause unimaginable unnecessary suffering, and are inescapably
and grievously harmful to the environment…. The notion of control is meaningless
and the idea of military necessity is absurd.” The Philippines has advocated the
criminalization of any nuclear use or threat.

As
president of the 2010 Review Conference of the Nuclear
Non-Proliferation Treaty, Cabactulan was instrumental in winning
adoption of the
humanitarian law provision. It ties in with the treaty, whose objective
was to
eliminate nuclear weapons “precisely because their destructive force is
inherently
inhuman,” he said at the recent meeting.

The treaty’s preamble begins by “Considering the devastation that would be
visited upon all mankind by a nuclear war.” It declares the nations’ intention “to
undertake effective measures in the direction of nuclear disarmament.” These
include a treaty for “the cessation of the manufacture of nuclear weapons, the
liquidation of all their existing stockpiles, and the elimination from national
arsenals of nuclear weapons and the means of their delivery….”

Granoff said advocates of a lawful nuclear policy simply urged fulfillment
of existing commitments that nuclear weapons states had made under the treaty.
They agreed in the 2,000 Review Conference to regard their cuts in nuclear arsenals as
irreversible, strive to reduce arsenals unilaterally, increase transparency, remove
weapons from high alert, lessen the bombs’ role in security policies, and
“accomplish the total elimination of their nuclear arsenals leading to nuclear
disarmament, to which all states parties are committed under Article VI” of the
treaty. “The nuclear weapons states thus affirmed that the duty of elimination is a
legal commitment,” Granoff said. He urged lobbying by lawyers to see it through.

Among
other forward developments have been initiatives by Ban Ki-moon, the UN
secretary general, for negotiating nuclear disarmament; a proposal by
Max Kampelman, best
known as President Reagan’s arms negotiator, for the abolition and
outlawing of nuclear
weapons; and the position of the Geneva-based International Committee of
the Red Cross that
the weapons are incompatible with humanitarian law and that preventing
their use requires
fulfillment of obligations to negotiate their total elimination through a
legally binding treaty. (See, below, the text of a speech by the
committee’s president, along with photos
of the atomic bombing of Japan.)

In recent weeks and months, the issues of nuclear disarmament and nuclear non-proliferation
have assumed a new urgency on the world stage. Energetic diplomatic efforts are heralding long
overdue progress on nuclear weapons issues in the post-Cold War era.

The International Committee of the Red Cross firmly believes that the debate about nuclear
weapons must be conducted not only on the basis of military doctrines and power politics. The
existence of nuclear weapons poses some of the most profound questions about the point at
which the rights of States must yield to the interests of humanity, the capacity of our species to
master the technology it creates, the reach of international humanitarian law, and the extent of
human suffering we are willing to inflict, or to permit, in warfare.

The currency of this debate must ultimately be about human beings, about the fundamental rules
of international humanitarian law, and about the collective future of humanity.

The ICRC has a legitimate voice in this debate. In its 150-year history, the organization has
witnessed immeasurable human suffering caused by war and understands the potential of
international humanitarian law to limit such suffering. The ICRC also brings to the debate its
own direct testimony to the consequences of the use nuclear weapons and their potential to
render impossible the mission of humanitarian assistance that this organization exists to fulfil. Dr
Marcel Junod, an ICRC delegate, was the first foreign doctor in Hiroshima to assess the effects
of the atomic bombing and to assist its victims. His testimony in an article entitled "The
Hiroshima disaster," stored in the ICRC's archives and first published in 1982, told of the human
reality of this weapon.

“We … witnessed a sight totally unlike anything we had ever seen before. The centre of the city
was a sort of white patch, flattened and smooth like the palm of a hand. Nothing remained. The
slightest trace of houses seemed to have disappeared. The white patch was about two kilometres
in diameter. Around its edge was a red belt, marking the area where houses had burned,
extending quite a long way further … covering almost all the rest of the city.”

According to witnesses encountered by Junod, in a few seconds after the blast “thousands of
human beings in the streets and gardens in the town centre, struck by a wave of intense heat, died
like flies. Others lay writhing like worms, atrociously burned. All private houses, warehouses,
etc., disappeared as if swept away by a supernatural power. Trams were picked up and hurled
yards away, as if they were weightless; trains were flung off the rails…. Every living thing was
petrified in an attitude of acute pain.”

As Junod recounts, destruction of this magnitude does not spare medical infrastructure or doctors
and their materials. Of 300 doctors in Hiroshima 270 were reported dead; of 1,780 nurses 1,654
were dead; of 140 pharmacists 112 were dead. Miraculously, the Japanese Red Cross hospital
that Junod visited was built of stone and remained largely intact. However, it could no longer
function as its laboratory equipment was unusable, a third of its staff had been killed and there
was no possibility of blood transfusion as the donors were either dead or had disappeared. Of a
thousand patients who had taken refuge there on the first day, 600 rapidly died.

The
suffering caused by the use of nuclear weapons is increased
exponentially by devastation of
the emergency and medical assistance infrastructure. The specific
characteristics of nuclear
weapons, that is, the effects on human beings of the radiation they
generate, also cause suffering
and death for years after the initial explosion. For survivors, the
immediate future may include
life-threatening dehydration and diarrhoea from injuries to the
gastrointestinal tract, and life-threatening infections and severe
bleeding caused by bone marrow suppression. If they survive
these threats, they face an increased risk of developing certain cancers
and of passing on genetic
damage to future generations. Thus over time many more lives are lost.
In Hiroshima and
Nagasaki, fatalities increased two- to three-fold over the following
five years.

Although nuclear weapons' potential for destructive force increased by a factor of many
thousands during the Cold War, the ability of States and international agencies to assist potential
victims did not. The ICRC has recently completed a thorough analysis of its capacity, and that of
other international agencies, to bring aid to the victims of the use of nuclear, radiological,
chemical or biological weapons. Despite the existence of some response capacity in certain
countries, at the international level there is little such capacity and no realistic, coordinated plan.
Almost certainly, the images seen in Hiroshima and Nagasaki will be those resulting from any
future use of nuclear weapons.

We now know that the destructive capacity of the nuclear weapons used in Hiroshima and
Nagasaki pales in comparison to those in current arsenals. According to many scenarios of
nuclear weapon use, the human and societal destruction would be much worse. We also know
that use of a fraction of the weapons held in current arsenals would affect the environment for
many years and render agriculture impossible in vast areas. The implications for human life are
indeed sobering.

Excellencies, ladies and gentlemen:

The International Committee of the Red Cross has long been preoccupied by nuclear weapons,
by the immense threat they pose to civilians and by their implications for international
humanitarian law. Already on 5 September 1945 the ICRC publicly expressed the wish that
nuclear weapons be banned. From 1948 on, the entire International Red Cross and Red Crescent
Movement, through its International Conferences, called for the prohibition of weapons of mass
destruction in general, and of nuclear weapons in particular. In a communication to States party
to the Geneva Conventions in 1950, the ICRC stated that before the atomic age:

"[W]ar still presupposed certain restrictive rules; above all … it presuppose[d] discrimination
between combatants and non-combatants. With atomic bombs and non-directed missiles,
discrimination became impossible. Such arms will not spare hospitals, prisoner of war camps
and civilians. Their inevitable consequence is extermination, pure and simple…. [Their] effects,
immediate and lasting, prevent access to the wounded and their treatment. In these conditions,
the mere assumption that atomic weapons may be used, for whatever reason, is enough to make
illusory any attempt to protect non-combatants by legal texts. Law, written or unwritten, is
powerless when confronted with the total destruction the use of this arm implies".
On this basis
the International Committee called on States to take "all steps to reach an agreement on the
prohibition of atomic weapons".

In 1996 the ICRC welcomed the fact that the International Court of Justice, in its Advisory
Opinion on nuclear weapons, confirmed that the principles of distinction and proportionality
found in international humanitarian law are "intransgressible" and apply also to nuclear
weapons. In applying those principles to nuclear weapons the Court concluded that "the use of
nuclear weapons would generally be contrary to the principles and rules of international
humanitarian law." It was unable to decide whether, even in the extreme circumstance of a threat
to the very survival of the State, the use of nuclear weapons would be legitimate.

Some have cited specific, narrowly defined scenarios to support the view that nuclear weapons
could be used legally in some circumstances. However, the Court found that " ...The destructive
power of nuclear weapons cannot be contained in either space or time…. The radiation released
by a nuclear explosion would affect health, agriculture, natural resources and demography over a
very wide area. Further, the use of nuclear weapons would be a serious danger to future
generations…." In the light of this finding, the ICRC finds it difficult to envisage how any use of
nuclear weapons could be compatible with the rules of international humanitarian law.

The position of the ICRC, as a humanitarian organization, goes — and must go — beyond a
purely legal analysis.

Nuclear weapons are unique in their destructive power, in the unspeakable human
suffering they cause, in the impossibility of controlling their effects in space and time, in
the risks of escalation they create, and in the threat they pose to the environment, to future
generations, and indeed to the survival of humanity.

The ICRC therefore appeals today to all States to ensure that such weapons are never used again,
regardless of their views on the legality of such use.

The international community now has at hand a unique opportunity to reduce and eliminate the
threat of nuclear weapons for this and succeeding generations. The UN Security Council,
meeting at summit level in September 2009, endorsed the objective of "a world without nuclear
weapons." Four months earlier the Conference on Disarmament in Geneva unanimously agreed
upon a programme of work and negotiations on nuclear weapon issues, including nuclear
disarmament. Some of the most renowned political and military leaders of recent decades have
concluded that nuclear weapons undermine national and international security and support their
elimination. Presidents Obama and Medvedev have recognized their countries' special
responsibility for the reduction of nuclear weapons. The Review Conference of the Treaty on the
Non-Proliferation of Nuclear Weapons, to be held in New York next month, provides an historic
opportunity for both nuclear and non-nuclear weapon States to agree on concrete plans for the
fulfilment of all the treaty's obligations, including those concerning nuclear disarmament.

In the view of the ICRC, preventing the use of nuclear weapons requires fulfilment of
existing obligations to pursue negotiations aimed at prohibiting and completely eliminating
such weapons through a legally binding international treaty. It also means preventing their
proliferation and controlling access to materials and technology that can be used to
produce them.

The opening sentences of Marcel Junod's testimony began: "The physical impact of the bomb
was beyond belief, beyond all apprehension, beyond imagination. Its moral impact was
appalling." We must never allow ourselves to become morally indifferent to the terrifying effects
of a weapon that defies our common humanity, calls into question the most fundamental
principles of international humanitarian law, and can threaten the continued existence of the
human species.

The ICRC today appeals to all States, and to all in a position to influence them, to seize with
determination and urgency the unique opportunities now at hand to bring the era of nuclear
weapons to an end.